Rey, Buttice y Zibecchi seguirán en prisión debido a que podrían “entorpecer la investigación”

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El Juzgado de Garantías Nº 2 de Resistencia dio lectura a los fundamentos del rechazo a la oposición a la prisión preventiva efectuado por exfuncionarios provinciales en el expediente 6309/2018-1 “Rey, Héctor Horacio; Lugo, Roberto Marcelo; Fernández, Susana Beatriz; Fernández, Ismael Ángel s/ violación de los deberes de funcionario público en concurso”.

En el caso de Horacio Rey, Paulo Buttice y César Zibecchi la decisión se sustentó en que, dado los delitos por los que son investigados, a primera vista: “en caso de existir condena en la presente causa la misma será de cumplimiento efectivo, infiriendo de tal circunstancia que los nombrados tratarán de eludir la acción de la justicia y/o entorpecer la investigación”.

EN DETALLE

El juez Horacio Sandoval detalló los fundamentos en la resolución de fundamentos Nº 110/18. Así, respecto a los planteos de nulidad de las declaraciones sostuvo que sería “una pretensión desmedida exigir que los requisitos, no ya del requerimiento de elevación de la causa a juicio sino de la declaración indagatoria prestada en esta etapa, se extienda más allá de los fijados en la ley procesal para ese acto en concreto, tanto en relación a la determinación de los elementos principales del hecho, las pruebas que lo sustentan como la calificación legal de los mismos”.

Al mismo tiempo aseguró: “no se advierte perjuicio alguno causado al derecho de defensa, ni agravio suficiente del cual derive interés legítimo en conseguir la declaración de nulidad”.

También relató que al observar las actas de declaraciones “se advierte que se han cumplido con las formalidades legales requeridas (identificación, interrogatorio previo y formalidad, y derecho de abstención); así también se le ha informado detalladamente los hechos por los que debía declarar, la calificación legal de los mismos, y puntual y ampliamente las pruebas e indicios existentes en su contra”. Las que fueron ratificadas después que los imputados ejercieran su derecho de defensa material.

Respecto a la nulidad del decreto de prisión preventiva, afirmó que fue “desmentida la supuesta falta de motivación del fallo denunciado por la defensa por una defectuosa descripción de los hechos, ausencia de un análisis sustantivo de los tipos penales involucrados o errónea calificación jurídica”.

Mientras que explicó que se rechazó la aplicación del principio de non bis in ídem (no ser juzgado dos veces por la misma causa) a favor Zibecchi, debido a que aquella está supeditada a que se cumplan tres factores que, en el presente caso, no se dieron: identidad de persona, identidad de objeto e identidad de causa de persecución; si alguna de ellas falla, no regirá el principio.

“Es de público conocimiento que la presente causa es un desprendimiento de la que se tramita ante el fuero federal, jurisdicción en la que se investigan delitos de naturaleza estrictamente federal por violación a leyes nacionales… y también que en esa investigación la Juez Federal ha declinado la competencia a favor de este fuero en relación a los delitos precedentes a los que allí se investigan”, completó.

Además remarcó que fue rechazado el  planteo de oposición a la prisión preventiva porque los fiscales Graciela Griffith Barreto, Nélida Villalba y Lucio Otero intimaron a Rey, Buttice y Zibecchi por considerar “que habrían llevado a cabo más de 200 hechos acreditados contra el erario provincial provocándole un perjuicio económico y patrimonial en orden de los $60.000.000 aproximadamente”.

Finalmente, amplió su postura respecto al “peligro procesal” señalando que “tiene influencia sobre la probable actitud que pudieran asumir en cuanto a su situación de libertad, porque la amenaza de pena que se vislumbra como consecuencia posible del proceso que enfrentan, se verá agravada en esta hipótesis de cumplimiento efectivo de la misma, ya que sabiendo que en caso de ser condenados la pena a cumplir será inexorablemente de cumplimiento efectivo, y por ello, que intenten eludir el accionar de la justicia fugándose.”

“Ello no es una construcción dogmática o arbitraria, sino derivada de la experiencia y del sentido común” y “constituye la razón fundamental por la que puede denegarse una excarcelación u ordenarse la prisión preventiva del imputado por un delito en relación al cual, por expreso mandato constitucional, debe ser tenido por inocente hasta que se demuestre lo contrario”, finalizó.

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